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Tuesday, June 24, 2014

Private lab may have mixed up hundreds of DWI samples

Here's another mess for the Texas Forensic Science Commission to sort through, this time related to a private lab handling DWI blood work for Bexar County. The San Antonio Express News coverage ("Lab errors place DWI cases under scrutiny," May 23) opened thusly:

Hundreds of Bexar County driving-while-intoxicated cases now are
under scrutiny after a forensic lab contracted by the county fired an
analyst accused of turning in sloppy paperwork on several occasions —
including once when she recorded names incorrectly on 350 blood samples.

Integrated Forensic Laboratories LLC in Bedford fired the employee,
analyst Cherrie Lemon, on May 16 upon determining that she “misplaced,
lost or destroyed another analyst's worksheet,” according to a letter
the lab director sent to the Bexar County district attorney's office.

Multiple phone calls to IFL's lab director, Dr. Nate Stevens, and
several others in the lab's parent company weren't returned Thursday.

Stevens' email states that IFL is conducting an audit to determine
which, and how many, DWI cases were affected by the fumbled
documentation. The investigation should be complete by May 30, he said.

“We have no indication that there's anything wrong with the test
results, it's just that she can't testify,” First Assistant District
Attorney Cliff Herberg said. “But I imagine there will be quite a few
requests for retesting.”

He said there are “several hundred” cases that could be eligible for
retesting, which takes a couple of weeks. Because many of the cases
still are awaiting trial, Herberg said he doesn't expect any retesting
to cause significant court delays.

Last summer, Lemon was scolded for a separate incident in which she
recorded the wrong names on 350 blood alcohol cases, Herberg said,
adding it remains undetermined how many of those cases originated
locally. ...

But local defense attorneys are more dubious of IFL's work, and have
correspondence detailing additional mix-ups involving Lemon and others.
One letter from last August states that while correcting one issue,
Lemon found that “many packages” of blood tubes had not been properly
sealed before they were refrigerated; in another instance, lab employees
left a bottle of acetone in a preparation room that may have
contaminated blood samples.

“People do make mistakes, but at this point, it seems a little bit
more systemic,” said Robert Featherston, president of the San Antonio
Criminal Defense Lawyers Association. “Nobody wants to see anybody
convicted on contaminated evidence, and everybody's real interested in
getting this stuff retested, if we can figure out whose blood is whose.”

This is the sort of large-scale situation for which the state needs to establish firmer protocols, particularly for identification and representation of already-convicted defendants whose cases may have been tainted by forensic error. IFL is a DPS accredited crime lab so it falls under the Texas Forensic Science Commission's purview and the incident has already been reported to the commission by the lab, the Express-News reported. IFL has also got a brand-new general manager, I discovered via a web search, who's got quite a job in front of her reacting to this mess.

Via Paul Kennedy, who has some choice words regarding notification issues in particular. He argued:

Now not to be too persnickety here, but letting the state and its agents
decide when defense counsel should and shouldn't be notified of
potential evidential issues is a bit like letting the fox guard the hen
house. The question isn't whether an audit revealed "issues" with any of
the tests, the question is whether or not the revelations cast doubt
upon the reliability of the test results.

The rule going forward should be that should any issues arise at a crime
lab (or contracted lab), both the court and defense counsel should be
notified. The court should then determine whether the problem is serious
enough to compromise a test result (or to present the appearance that a
test has been compromised).

For anyone who still harbors illusions that our modern day crime labs
are as sophisticated and well-run as the labs on CSI and other forensic
science procedurals, let this be a wake-up call. The purpose of a crime
lab isn't to discover the truth - it is to produce useful evidence for
the prosecution. This mission creates a culture where problems are to be
swept under the rug lest those pesky defense attorneys find out what's
going on behind closed doors. It's only when there are clear cases of
misconduct that any of us find out just what happened.

That last observation in particular is right on the money. And it's one of the reasons I think the Forensic Science Commission has been valuable. The fact that problems must be reported to them and are publicly vetted greatly increases transparency, has produced numerous fruitful recommendations and outcomes, and has fostered a useful public forum for deliberation among stakeholders surrounding these topics, which is all it was ever really empowered to do. When they meet again in August, I'd expect the FSC to vote to investigate Bexar County case, based on their prior patterns. Seems right up their alley.

"...in another instance, lab employeeS [plural] left a bottle of acetone in a preparation room that may have contaminated blood samples..."

That is, more that one individual was involved in the misconduct. What are their names? How many cases are affected by the misdeeds of these other individuals?

Also of importance=

"...One letter from last August states..."

That was 10 months ago, folks! Why is the public only hearing about it now? Why wasn't it reported to the Forensic Science Commission long ago? Why wasn't DPS alerted long ago? What action did DPS take?

No doubt these questions will be answered with the silence of stupidity and blank stares of incompetence.

"The rule going forward should be that should any issues arise at a crime lab (or contracted lab), both the court and defense counsel should be notified."

Mr Kennedy may want to think this through some more. "Any issues" seems too vague to put into place as a requirement. The intent seems to be to cast a wide net so that the defense can review all the "issues", and then make arguments before the court regarding admissibility of test results. The law already makes this possible. The defense is entitled to all laboratory records related to testing. Laboratory accreditation standards require a number of categories of records that would include records of the sorts Mr. Kennedy would like to see, such as instrument calibration records, analyst proficiency test record, reagent preparation logs, equipment maintenance logs, etc. These are all currently available to the defense under Texas law.

By requesting these records, the defense has access to the full range of available information for its review, without needing someone on the prosecution side of things to correctly determine if something would be an "issue" or not.

If the defense needs some expert review of records to evaluate if there is an issue that impacts the reliability of testing, then traditionally this has been done by experts hired by the defense. Most criminal attorneys are poorly qualified to review technical scientific documents of any sort on their own.

I think there was an old rule (probably Bilbical) which said a person could not be convicted on the testimony of one witness. I think we should apply that rule to labs. Samples should be sent to two independent labs and a test from a single lab should not be sufficient to convict a person.

"...Laboratory accreditation standards require a number of categories of records that would include records of the sorts Mr. Kennedy would like to see, such as instrument calibration records, analyst proficiency test record, reagent preparation logs, equipment maintenance logs, etc. These are all currently available to the defense under Texas law..."

This is incorrect. ASCLD/LAB is responsible for most lab accreditations in Texas. However, ASCLD/LAB is not a govt agency and thus doesn't (as a matter of routine) have to adhere to Open Records Requests or Discovery. In fact, ASCLD/LAB claims that it does not keep such documents that would be informative to the mishandling of evidence or credibility of lab results.As has been demonstrated in GFB's last couple of posts, accreditation failed to find the problems of several lab analysts, in several labs.

"... Most criminal attorneys are poorly qualified to review technical scientific documents of any sort on their own..."

As are prosecutors, which is why they don't look for documentations that may crush their chances of winning.

5:27-That can be done now. But defense attorneys rarely request it. They rarely even get their own experts to review the lab work. The purpose of the defense is not to obtain a just decision. It is to get the best possible result for their clients.

8:02 -The requirement is that labs keep the reccords, not accrediting bodies. Every accredited lab has them. They are there for the asking.

8:58-Isn't the onus on the prosecutors? Shouldn't the prosecutors be responsible for vetting the lab documents and turning them over to the defense as Brady material?And what penalty should the prosecutor face if they don't do that?Or do they get a blind-eye willful negligence pass?

7:17-SB1611 seems to shift the burden of vetting these sorts of laboratory records to the defense, since the records are not explicitly exculpatory. (The prosecution still has the responsibility to reveal known exculpatory information as required by Brady.) The prosecution must notify the defense of the existence of the records, and must make the records available to the defense upon request, but then it is up to the defense to request the records and review them.

I understand that some laboratories have begun adding statements to their reports saying that supporting records exist and are available upon request. Whether this is necessary or not under SB1611 is not really clear to me. But it seems like a good idea. At least no one who gets the reports can claim down the road that they didn't know that the records existed.

Here is a link to a summary description of what is required under SB1611: http://www.tdcaa.com/journal/dawn-new-discovery-rules

"...We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution..."

Thus, I would assume that crime lab annual audit reports, corrective actions, accreditation reports, etc. should be reviewed by the prosecution -- then immediately forwarded to the defense as Brady material. Because, after all, how is a prosecutor to know what is and what isn't "favorable" to the defense?

"(h) Notwithstanding any other provision of this article, the state shall disclose to the defendant any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged."

Ho-lee crap! Think about this: private crime labs that produce "good" results (that is, favorable to the prosecution's interests) stand a better chance of getting more contracts and renewals of contracts with law-enforcement agencies. I can't think of ANY incentive for such a lab to actually produce HONEST results, other than regulatory oversight and potential successful refutal of their results by defense lawyers. I don't know much about DWI prosecution or defense, but I'm thinking anyone arrested for DWI who thinks their case may be borderline or bogus might want to petition for independent testing of their specimen--if that's even possible. If you live in a county with a District Attorney's office that espouses a "win at all costs" mindset (like Smith County) you'd be really afraid of stuff like this. (corruptioncapitalusa.blogspot.com)

fwiw -I work in a public lab that does work for both prosecution and defense. It is always my recommendation to defense attorneys that they get their own expert to review lab work and then get some selective retesting of critical evidence. The results of defense retesting are not discoverable to the prosecution. And usually the court can be convinced to pay for the testing. I believe that almost without exception lab scientists are honest and competent. But the knowledge that someone may be coming in after you to verify your work is always a good thing. I'm always surprised that more defense attorneys don't ask for retesting. In some areas - like dwi cases - there is almost no retesting.

"...tends to negate the guilt..." is the equivalent to "favorable", which would include those records from the crime labs that demonstrate incompetence or dishonesty of the analysts and/or lab managers.

Thus, if these documents are in possession/custody/control by the crime labs (The State), then prosecutors are responsible for finding them and presenting them to the defense per TCCP 39.01, per Brady v. Maryland.

If you're a defense attorney and you haven't received these documents, prosecutorial Brady violations have occurred.

10:56-In regard to records that impeach the credibility of people who processed the case, you aren't telling anyone anything they don't already know. That information has always been subject to disclosure under Brady, and there is lots of case law out there on what constitutes impeachable information. Labs routine produce records such as proficiency test records and disciplinary file records as part of their responsibilities under Brady.

You state, "Labs routine produce records such as proficiency test records and disciplinary file records as part of their responsibilities under Brady."

You're assuming labs are "responsible".

I know analysts from crime labs and this type of information is not even available TO THEM. So, to blindly believe that every single piece of favorable information is making it's way outside the the crime lab walls, into the hands of prosecutors/defense attorneys, and into a court room is laughable.

Audit records, corrective action documents, proficiency test result, et cetera -- are not available to the lab analysts. Because analysts are required to testify, the less information known by the testifying analyst, the less that leaks out during testimony -- the less damage done to the prosecutors case or to the crime lab's so-called integrity.

Ever seen one analyst testify to the credibility or competency of a co-analyst? Nope. Although, arguably, this type of information could be described as "favorable" if the testifying analyst knew and saw the co-analyst mishandle evidence, use poor scientific technique, disregarded protocols, or show up to work drunk, for example. None of this would make it to paper, no documentation.

Cherrie Lemon's (and Peter Lentz's) co-workers probably knew of her (and his) discrepancies for a long, long time. But the "responsible" lab didn't document them, so the info never made it outside the black box.

"Ever seen one analyst testify to the credibility or competency of a co-analyst? Nope. Although, arguably, this type of information could be described as "favorable" if the testifying analyst knew and saw the co-analyst mishandle evidence, use poor scientific technique, disregarded protocols, or show up to work drunk, for example. None of this would make it to paper, no documentation."

Every lab I am familiar with requires that staff report observations such as these in writing so that an investigation can take place. There would then be an investigation, which would be documented. Depending upon the outcome, there might be disciplinary actions, which would also be documented, and placed in the analysts's personnel file.

Since evaluation of the competency of co-workers is generally outside the scope of most bench analyst's job responsibilities, testimony along these lines would typically fall outside a bench analyst's direct knowledge and would not be admissable in testimony.

The colleagues of ex-forensic analyst Annie Dookhan (Massachusetts) "were deeply suspicious of her shoddy work habits and extremely high output for years. But supervisors took little action for more than a year..."

Ex-forensic analyst Fred Zain (West Virginia/Texas) was given promotion after promotion "even though, beyond public notice, two laboratory colleagues had been complaining about his bias against defendants and even presented evidence to state officials showing some of his laboratory tests contradicted his trial testimony."

Indeed, ex-forensic analyst Jonathan Salvador's (Texas) coworkers declaring he "just made so many mistakes" and "more than one examiner shared concerns about Salvador's high error rate and lack of understanding of the chemistry with the drug section supervisor." Yet Salvador was given promotions and pay increases.

"...additional mix-ups involving [Cherrie} Lemon AND OTHERS..."

How many more examples would it take to demonstrate your argument as a fallacy?

The bench analysts knew of shoddy work, yet the supervisors/managers/higher authorities failed to perform their duties and hid the misconduct.

"...“Employees recall having observed the door to the drug vault propped open numerous times over the years,” stated the report. “When the DSP secured the drug vault on February 20, 2014, a well-worn, wooden chock was observed in the area adjacent to the door. Based on witness interviews, investigators believe this was used to hold the door open.”

"...The investigation has lead to the arrest of two lab employees, Forensic Investigator James Woodson and Laboratory Manager Farnam Daneshgar, along with the suspension of Chief Medical Examiner Dr. Richard Callery.

Woodson was indicted on one count each of trafficking cocaine, theft of a controlled substance, official misconduct, and tampering with evidence.

Daneshgar was indicted on two counts of falsifying business records. According to the report, witnesses accused Daneshgar of “dry labbing,” which is the “practice of declaring a result without performing the analytical testing to produce the result.”

My point was that accredited laboratories, particularly those accredited under ISO/IEC 17025 standards, maintain a variety of records relevant to the concerns in the post, and that these records are currently available to the defense. That point stands. The fact that there are bad actors doesn't change that point. If anything, it argues for greater due diligence on the part of the defense to independently review the records that are available.

"...“Employees recall having observed the door to the drug vault propped open numerous times over the years,” stated the report. “When the DSP secured the drug vault on February 20, 2014, a well-worn, wooden chock was observed in the area adjacent to the door. Based on witness interviews, investigators believe this was used to hold the door open.”

"...The investigation has lead to the arrest of two lab employees, Forensic Investigator James Woodson and Laboratory Manager Farnam Daneshgar, along with the suspension of Chief Medical Examiner Dr. Richard Callery.

Woodson was indicted on one count each of trafficking cocaine, theft of a controlled substance, official misconduct, and tampering with evidence.

Daneshgar was indicted on two counts of falsifying business records. According to the report, witnesses accused Daneshgar of “dry labbing,” which is the “practice of declaring a result without performing the analytical testing to produce the result.”

7/01/2014 10:43:00 PM

The Controlled Substances Lab in DE referred to above, was ISO certified, but barely.... I worked in that lab before the thefts had come to light. I complained of incompetence and bad management and even went outside the agency. Upper management, those above the CS &FES manager, such as the Chief ME and his Deputy Director, defended the Units manager and minimized and suppressed evidence of incompetence.

Politics and Law Enforcement culture are often at odds with Scientific integrity.

As a scientist, I would have never believed obvious mismanagement and incompetence would be tolerated and covered up by directors in charge of such a person. Weren't they interested in truth and quality of results? Turns out they were interested in maintaining the status quo and in keeping their jobs as easy as possible.

The Andrews International report and audit commissioned by the secretary of OME's parent agency. DE health and Social Services, and released in July of 2014, in their Executive statement, cited the culture of indifference and incivility to be the likely cause of the ongoing, gross oversights. Just google it. The first few pages are an interesting read in "toxic culure."

Unfortunately for me, it was daily battle for a year and a half; it was beyond demoralizing... I was still idealistic at 50'years of age but they took that from me. Not just the managers, but my fellow lab workers turned their heads. They were happy with their lax supervision and their 4'day work-week (Which had the manager been competent, may have been fine except that Farnam. Who stands accused of records falsification, became the manager when said incompetent managerretired.). But the point is, 5 or 6 people knew she was wreckless and inconsistent and a liability to the agency. They knew for 5 or more years.

Would you trust someone like that with your reputation as a scientist? You would be surprised at how many did.

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